1 word missing from court document means less punishment for doctor in death of patient

DENVER (KDVR) -- Dr. Joel Miller was about to be the first doctor in Colorado history to be sentenced for causing a patient's death. A federal jury in Denver convicted him in November on eight counts (he was indicted on 35 counts) related to overprescribing opiates to his patients.

But the FOX31 Denver Problem Solvers have learned the most serious count, related to causing a patient's death, has been dismissed by the judge after the jury already convicted Miller for it.

Federal Judge Robert Blackburn approved a defense motion for acquittal based on one missing word: Fentanyl.

An overdose of fentanyl is what killed 44-year-old Shelly Volkmar in Craig on Aug. 27, 2010. But the U.S. Attorney's Office admitted its prosecutors accidentally left the word fentanyl out of the charging document.

In the motion to grant acquittal, Blackburn wrote, "The "death resulted language of Count 24 alleges and identifies only hydrocodone, alprazolam, and clonazepam as the substances which resulted in the death of S.V. However at trial the evidence eliminated hydrocodone, alprazolam, and clonezpam as controlled substances that resulted in death. ... Therefore judgment of acquittal must be granted."

"She wanted to be clean more than anything else in the world and he helped her not do that. He specifically guided her into a direction that would lead to her death and now nobody is going to know," Granados said.

During a five-week trial, prosecutors presented evidence from Volkmar's autopsy that showed her body contained "a quantity of fentanyl approximately 10 times the maximum therapeutic level."

"Somebody else saw it for what it really was and for one word it was taken away," Granados said.

The U.S. Attorney's Office was seeking a 20-year sentence for Miller but said it now can only ask for a 10-year sentence on the remaining lesser counts.

It's possible the judge could give Miller more time than sentencing guidelines suggest, but its not likely. Miller, who practiced in Craig in northwest Colorado from 2008 to 2012 until his license was revoked, will be sentenced May 13.